FTC Chief Says Social Issues Are Outside Scope of Antitrust Law

September 12, 2017

By Alexei Alexis, Bloomberg BNA

Federal Trade Commission Acting Chairman Maureen Ohlhausen Sept. 11 reaffirmed her support for antitrust “humility” amid public pressure for a more populist enforcement regime that reaches issues such as income and wealth inequality.

Amazon.com Inc.’s now-consummated tie-up with Whole Foods Market Inc. has added fuel to arguments that U.S. antitrust policy is in need of significant changes.

Without mentioning Amazon specifically, Ohlhausen said that some public interest groups and members of Congress are mischaracterizing many socio-economic problems as “antitrust” problems.

“There are many social and economic problems — such as income or wealth inequality between individuals or between regions of the country — that antitrust is simply not well suited to address,” Ohlhausen said in a speech at George Washington University Law School.

The FTC announced Aug. 23 that it had decided to no longer pursue an investigation of the $13.7 billion Amazon-Whole Foods tie-up. The transaction was cleared within a 30-day review period, which is normally reserved for simple mergers.

The FTC has come under fire from public interest groups and members of Congress for quickly approving the deal, despite calls to closely scrutinize various issues, including how Whole Foods workers might be impacted.

Rep. David Cicilline (D-R.I.), the ranking Democrat on the House Judiciary Committee’s antitrust subcommittee, has called for Congress to consider ways to modernize antitrust laws to consider the impact of large mergers on both workers and consumers.

In July, House Minority Leader Nancy Pelosi (D-Calif.) and Senate Minority leader Chuck Schumer (D-N.Y.) unveiled a populist-style economic plan that focused on strengthening antitrust policies, among other areas. The “Better Deal” plan calls for a crackdown on “corporate monopolies and the abuse of economic and political power.”

The plan would establish new merger standards that require regulators to review how the deal could impact wages and jobs, among other criteria.

Ohlhausen’s speech was at odds with the proposals. She said that antitrust is a “precision” tool, designed to remedy specific harms rather than “macroeconomic” issues.

“Antitrust is well suited to address behavior that undermines free market competition, such as concerted restraints of trade or attempts to gain market power through acquisitions,” she said. “Antitrust can also remedy unilateral conduct by a monopolist that harms the competitive process when the harm is not outweighed by consumer benefits.”

To contact the reporter on this story: Alexei Alexis in Washington at aalexis@bna.com

To contact the editor responsible for this story: Fawn Johnson at fjohnson@bna.com